R v Belfon
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE WIEN |
| Judgment Date | 19 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Crim J0319-9 |
| Docket Number | No. 4079/C/75 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 March 1976 |
[1976] EWCA Crim J0319-9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Stephenson
Mr. Justice Wien
and
Mr. Justice Forbes
No. 4079/C/75
MR. A. COLLINS appeared on behalf of the Appellant.
MR. N. PURNELL appeared on behalf of the Crown.
REASONS FOR JUDGMENT
For over a century Judges have almost daily directed juries as to the essential elements required to constitute the offence of wounding with intent to do grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861. The adjective "grievous" is outmoded. Therefore the words "really serious" have been properly and sensibl used to describe the nature of the bodily harm that must be intended. There has never been any need to explain what "intent" means since the specific intent is defined in the section. Juries do not seem to have experienced any difficulty in understanding the word "intent" without further explanation and convictions under this section are frequent.
In the instant case the Judge directed the jury in the following terms: "The law about intent is this A person intends the consequences of his voluntary act in each of two quite separate cases; first when he desires those consequences and secondly when he foresees that they are likely to follow from his act but he commits the act recklessly irrespective of appreciating that those results will follow."
This appeal raises the question whether that direction with yet a further elaboration was correct. The elaboration was as follows: "Let us apply that particular general principle in the case of wounding. A man who in fact wounds another man is guilty of doing so with intent to cause him serious injury if either he wishes to cause him serious injury and that is therefore why he does what he does, or alternatively he foresees that serious injury is likely to result from his using whatever implement he does use in the way that he does and he nevertheless does that injury recklessly, notwithstanding his foresight that serious injury is likely to result. So what you have to ask yourselves when you have to decide what a defendant did in a particular case is this. Did he do it either intending in the sense of wishing that serious injuries should result or even if not that, did he at the time as a matter of fact foresee that serious injury was "probably going to result and yet went on and did the act recklessly, ignoring his foresight that really serious injury was a likely consequence of what he was doing? If either of those matters be the case then he is guilty of the necessary intent but unless it is proved that one or other of those matters is true of the case then the necessary intent is lacking."
On the 4th August 1975 at the Central Criminal Court the appellant pleaded not guilty to count 3 of an indictment that charged him and another man with wounding Ernest Home on the 7th of October 1974 with intent to do him grievous bodily harm. He pleaded guilty to an alternative charge (count 4) of maliciously wounding Ernest Horne on the same date, contrary to section 20 of the Offences against the Person Act 1861. The prosecution wished to proceed with the graver charge. The plea of guilty to the lesse charge was withdrawn by order of the Court and a trial followed before Judge Hines and a jury. On the 7th of August 1975 the jury convicted the appellant and the other man on count 3.
The relevant facts relating to count 3 were simple and not exceptional. Shortly after midnight on the 7th of October 1974 in Hplloway the appellant and another man set upon a group of people who had come out of a public house and had gone to protect a girl who was pushed to the ground by the appellant. Mr. Home's son Paul was the first to be attacked by the other man. The appellant slashed Mr. Horne with an open razor causing severe injuries to his forehead and wounds to his chin and lower chest, as photographs show. The attack was quite unprovoked. After initial denials by the appellant that he was ever at the scene at all he eventually admitted his presence. The jury were informed of his plea of guilty to count 4.
Whether the language used by the Judge in his directions was liable to confuse the jury or was desirable was not the point of this appeal. Counsel for the Crown submitted that the direction was correct in that foreseeability of the consequences that are likely to follow from a voluntary act is of general application in considering the mens rea required to establish an offence. He conceded that recklessness by itself was insufficient but argued (a) that being reckless was equivalent to a disregard of the consequences, which it unquestionably is, and (b) that "recklessly" in the context of the direction was an additional element to foreseeability. He said that the jury's verdict was so interpreted by the Judge who in imposing sentence said: "…the basis on which the jury have convicted you both of causing those wounds to Ernest Home with intent must have been based not on an actual desire to do him serious injury but upon a realisation that there was a likelihood that you would cause serious injury and recklessly going on and doing what you did."
Counsel for the appellant submitted that the direction was plainly wrong. "Recklessness" will not suffice to establish the specific intent required to cause grievous bodily harm though it might be sufficient to establish malice aforethought in a case of murder. In this respect he says that the law is accurately and succinctly stated by the learned editors of Smith and Hogan's Criminal Law, 3rd Edition, at page 47, where it is stated "…attention should be drawn to the fact that, where an ulterior inten is required, recklessness is not enough. On a charge of wounding with intent to cause grievous bodily harm, proof that D was reckless whether he caused grievous bodily harm will not suffice. Yet, paradoxically, if death resulted from the wound, D's "recklessness would probably be enough to found liability for murder."
We agree that recklessness cannot amount to the specific intent required by the section, for the reasons shortly to be stated. Counsel for the appellant further submitted that whilst foreseeability of serious physical injury that will probably flow from a deliberate act is a relevant factor in cases of murder, it has no application to a case of wounding with intent because the nature of the particular intent is defined in section 18 and no further definition is permissible, let alone desirable.
Prior to the case of R. v. Hyam (1975) Appeal Cases 55 one ventures to think that it would never have occurred to a Judge to explain what "intent" meant when directing a jury in a case of wounding with intent. He would have told the jury that what has to be proved is (1) a wounding of a person concerned, (2) that the wounding was deliberate and without justification, that is that it was not by way of accident or self-defence, (3) that the wounding was committed with intent to do really serious bodily harm and (4) that the necessary intent must have been in the mind of the accused, that is the intent of a reasonable or sensible man is irrelevant, for the test is a subjective one, and not objective. Nothing more than this was ever called for except in certain cases where an explanation of "wounding" was desirable.
Why then did this learned Judge depart from the usual practice? The Court can only assume that he has been influenced by certain opinions expressed by their Lordships in R. v. Hyam. Before one turns to the various passages that might be relevant it must be emphasised that Hyam' case was concerned with the mens rea necessary to establish murder. Murder is unlawful homicide with malice aforethought. "Malice aforethought means …. (a) an intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; ….". The law is so stated in Stephen's Digest of Criminal Law, 9th edition, Article 264. Lord Cross of Chelsea, in Hyam's case, at page 95, accepted that Stephen had correctly stated the law, although he referred to the original...
To continue reading
Request your trial
-
People v Douglas
...in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition." 14In Reg. .v. Belfon 63 Cr. App. R. 59; (1976) I W.L.R. 741; Wien, L.J., said at page 749 "There is certainly no authority that recklessness can constitute an intent to do grievo......
-
R v Moloney
...way what my noble and learned friend is about to say in answer to the certified question. It had already been pointed out by Wien J. in Reg. v. Belfon [1976] 1 W.L.R. 741, 747 that it is not foresight but intention which constitutes the mental element in murder, and the undesirability of e......
-
People v Murray
...381. 29 (1954) 111 Can. C.C. 106. 30 [1925] 2 I.R. 9. 31 (1611) 9 Co. Rep. 68. 32 (1954) 111 Can. C.C. 106. 33 [1968] 1 Q.B. 421. 34 [1976] 1 W.L.R. 741. 35 See [1966] I.R. 361. 36 [1974] I.R. 422. 37 See p. 361, ante. 38 [1962] A.C. 635, 660. 39 See p. 375, ante. 40 See p. 363, ante. 41 (1......
-
R. v. Dawson (E.F.), (1995) 143 N.S.R.(2d) 1 (CA)
...the express purpose of depriving the other parent of possession of the children: see R. v. Belfon (1976), 63 Cr. App. R. 59, at p. 65; [1976] 3 All E.R. 46 (C.A.), Smith and Hogan, Criminal Law , (6th Ed. 1988), pp. 70-1, Mewett and Manning, Canadian Criminal Law , (2nd Ed. 1985), pp. 106-1......